US v. Tremayne Carmichael
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TREMAYNE NAVARIS CARMICHAEL, Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, Senior District Judge. (5:06-cr-00009)
February 14, 2008
February 29, 2008
Before MOTZ and KING, Circuit Judges, and WILKINS, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Tremayne Navaris Carmichael pled guilty to possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced to a term of seventy-two months imprisonment.
Carmichael appeals his sentence, arguing that the district court erred in making a 6-level adjustment for assault on a law
enforcement officer in a manner that created a substantial risk of serious bodily injury during the offense, or immediate flight therefrom, under U.S. Sentencing Guidelines Manual § 3A1.2(c)(1) (2005). We affirm. Carmichael was stopped by Goldsboro, North Carolina, Police Officer Steven Powers because Carmichael's vehicle matched the description of a car involved in recent drive-by shooting. Powers called for backup after seeing what appeared to be marijuana on Carmichael's pants. concealed in his Carmichael, who had a loaded firearm tried to flee through the open
After a brief struggle with Powers, who
reached in through the window on the driver's side and grabbed his legs, Carmichael succeeded in pulling the top half of his body out of the window. Powers testified at the sentencing hearing that, at this point, he looked over the roof of the car and saw a gun in Carmichael's hand, coming toward him. Carmichael. Powers shot and wounded
- 2 -
testimony about the incident from Powers, the backup officer, Carmichael, and two witnesses to the incident. Carmichael
testified that he did not take the gun from his waistband before he was shot. The court found Powers' testimony to be the most
credible. Carmichael also argued that the § 3A1.2(c)(1) adjustment required a finding that he intended to harm the officer, but he informed the court that he would not object to a 2-level adjustment under USSG § 3C1.2 (Reckless Endangerment). The court applied
§ 3A1.2, finding that Carmichael caused Powers to fear that he would be shot, thus making the implied finding that his conduct amounted to an assault in a manner that created a substantial risk of serious bodily injury. We review the district court's factual findings for clear error and its interpretation of the guidelines de novo. States v. Quinn, 359 F.3d 666, 679 (4th Cir. 2004). Note 4 to § 3A1.2 states that "[s]ubsection (c) United
Application applies in
circumstances tantamount to aggravated assault" against a law enforcement officer or prison official, and that "its applicability is limited to assaultive conduct against such official victims that is sufficiently serious to create at least `a substantial risk of serious bodily injury.'" The commentary to § 3A1.2 does not define aggravated assault. Nor does it require a showing of intent.
- 3 -
Carmichael contends that the district court should have applied the definition of aggravated assault set out in Application Note 1 to USSG § 2A2.2 (Aggravated Assault). However, § 2A2.2 is
not applicable to Carmichael's offense. Definitions of widely-used terms are set out in USSG § 1B1.1 (Application Instructions). Application Note 2 to § 1B1.1 states that definitions of terms contained in other guidelines "are not designed for general
applicability" and "their applicability to sections other than those expressly referenced must be determined on a case by case basis." In this case, Carmichael concedes, as he did in the district court, that his conduct caused a substantial risk of serious injury to Powers, § 3C1.2 but maintains that only a 2-level both
§ 3A1.2(c)(1) and § 3C1.2 may apply, without a finding of intent, if the defendant created a substantial risk of serious bodily injury. The difference is that, if the defendant's conduct caused
the risk to an official victim, such as a law enforcement officer, the 6-level adjustment under § 3A1.2 must be applied. See United
States v. Sloley, 19 F.3d 149, 154 (4th Cir. 1994);* USSG § 3C1.2, comment. (n.1) (§ 3C1.2 should not be applied if another Chapter
When Sloley was decided, the pertinent language was in § 3A1.2(b) and the guideline provided only a three-level adjustment. Amendment 664, effective November 1, 2004, added subsection (c) and increased the adjustment to six levels. - 4 -
Three adjustment results in greater increase in offense level based on same conduct). Carmichael attempts to distinguish Sloley, asserting that the only issue in that case was the district court's factual finding that Sloley Sloley assaulted argued that the officer. conduct However, warranted like the
application of § 3C1.2 instead of § 3A1.2.
We noted in Sloley
that, if both § 3A1.2(b) and § 3C1.2 apply, the sentencing court must apply § 3A1.2, which provides a greater increase, see 19 F.3d at 154, and for that reason, we stated that the relevant question was whether the defendant's conduct warranted a finding that he had assaulted the officer in a manner creating a substantial risk of serious bodily injury. Id. Here, as in Sloley, Carmichael's
conduct created a substantial risk of serious bodily injury to the officer. We find no error in the court's application of
§ 3A1.2(c)(1). We therefore affirm the sentence imposed by the district court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED
- 5 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?